The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.
American civil jurisprudence would benefit from this German concept of the judiciary's role. Judicial participation could increase without resistance in four areas of the U.S. system: the pretrial conference, the pretrial scheduling order for discovery, the use of special masters, and the calling and questioning of witnesses. Under the American approach, although the judiciary has the right to take a more active role in proceedings, most judges fail to exercise this power other than for, perhaps, complex litigation. For example, American judges are given discretionary authority to call a pretrial conference where they can take action with respect to numerous aspects of a case. If the rules of civil procedure were amended to make mandatory both pretrial conferences and the consideration of certain topics, the American system would function more fairly and efficiently, like the German system. American judges could also increase their involvement by facilitating detailed discussions of settlement agreements for all civil cases.
Recommendations must account for the difficulties inherent in extracting any procedural rule from a foreign system and trying to import it into another unique, complex system. Implementing a recommendation can be most successfully undertaken when two cultures are similar enough to be harmonized. A German legal system typically described as inquisitorial seems completely at odds with the American adversarial system and its legal history. However, recent German reforms and changes to the U.S. Federal Rules of Civil Procedure have brought closer these two systems. Both countries seek to recognize due process rights and to avoid situations where litigants will be surprised about a verdict. Additionally, American courts have moved closer to their European counterparts in the past decade by adopting a heightened pleading standard, comparable to the standards imposed by the American Law Institute ('ALI") and UNIDROIT.
Many potential obstacles to implementation relate to judicial workload, to the legal profession's distaste for increased judicial participation, and to the judiciary's limited view of its role. These obstacles could be overcome through the increased use of special masters and magistrates and the continued use of contingency fees. Any move toward increased judicial involvement must be made cautiously in a system so fundamentally and stubbornly adversarial as is the American civil trial process. Still, such reforms can and should be pursued.
Robert W. Emerson,
Judges as Guardian Angels: The German Practice of Hints and Feedback,
48 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol48/iss3/3